Delhi High Court
M/S Xtreme Perfumes And Personal ... vs Employee Provident Fund ... on 23 October, 2018
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd October, 2018
+ W.P.(C) 10686/2018 & CM Nos. 41656-41657/2018
M/S XTREME PERFUMES AND PERSONAL CARE PVT
LTD ..... Petitioner
Through: Mr. Monu Nayar, Adv.
versus
EMPLOYEE PROVIDENT FUND OREGANIZATION AND
ORS. ..... Respondents
Through: Mr. Abhishek Sharma and
Mr. Parveen Kumar, Advs. for
R-1 to 4
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (ORAL)
1. This writ petition challenges the order dated 28th February, 2017
passed by the Assistant Provident Fund Commissioner (hereinafter
referred to as the "APFC") as well as the orders dated 24 th May, 2017
and 10th September, 2018, passed by the Employees Provident Fund
Appellate Tribunal and the Central Government Industrial Tribunal,
respectively. Inasmuch as the jurisdiction earlier being exercised by
the Employees Provident Fund Appellate Tribunal is subsequently
being exercised by the Central Government Industrial Tribunal, both
these authorities, for the sake of ease of reference, shall, hereinafter,
be referred to as "the Tribunal".
2. The challenge to the assessment order dated 28th February,
2017, passed by the APFC, obviously cannot survive any more before
this Court, as the petitioner moved the Tribunal, against the said order,
by way of ATA 305-16/2017.
3. In the said appeal, the learned Tribunal, vide order dated 24 th
May, 2017, directed pre-deposit, by the petitioner, of 40% of the
amount assessed by the APFC, vide order dated 28th February, 2017,
(supra), as a condition of hearing of the appeal, and stayed the
operation of the order of the APFC, subject to such payment.
4. The petitioner has sought to submit, in the writ petition, that he
had prepared an application, to be filed before the Tribunal, seeking
review of the aforementioned order, dated 24th May, 2017, though
learned counsel for the petitioner is candid in conceding that he cannot
point out any provision of the law, which permitted filing of such an
application.
5. Be that as it may, such a review/modification application, was
apparently not filed, as, in the submission of the petitioner, when he
went to file the said application before the Tribunal, on 23 rd June,
2017, he got to know that the Tribunal itself had been disbanded.
6. There is no explanation as to why, in such circumstances, the
petitioner did not seek other remedies, challenging the order of 24th
May, 2017, at that stage, if he was aggrieved thereby.
7. The writ petition further avers that, on 3rd August, 2017, the
petitioner again proceeded to the Tribunal, but got to know,
subsequently, that the jurisdiction of the Tribunal stood transferred to
the CGIT-cum-Labour Court.
8. To cut a long story short, it is undisputed that, till 10th
September, 2018, no application was filed before the Tribunal or
before any other judicial forum, seeking any variation of the order
dated 24th May, 2017 (supra), whereby pre-deposit of 40% was
directed.
9. In these circumstances, the Tribunal, vide the impugned order
dated 10th September, 2018, has dismissed the petitioner's appeal for
non-compliance with the direction of pre-deposit, as contained in the
order dated 24th May, 2017(supra).
10. It is only now that the petitioner has moved this Court, seeking
to challenge the order dated 24th May, 2017, as well as the order dated
10th September, 2018, passed by the Tribunal.
11. In my view, it is too late in the day for the petitioner to
challenge the order dated 24th May, 2017 (supra). If, for any reason,
the petitioner was not in a position to move the Tribunal, seeking any
variation or modification of the said order, the petitioner ought to have
chosen other remedies, available to him for the said purpose. Not
having elected to do so, the petitioner cannot, today, use this writ
petition as a vehicle to challenge the order dated 24 th May, 2017
(supra), which, essentially, ceased to exist with the dismissal, by the
Tribunal, of the appeal itself, by the impugned order dated 10th
September, 2018.
12. Though, in view thereof, this writ petition would be liable to be
dismissed, as there is no illegality in the order dated 10 th September,
2017 (supra) passed by the Tribunal, I have queried, of learned
counsel for the petitioner, as to whether his client would be willing to
effect pre-deposit, in terms of the order dated 24th May, 2017 (supra)
passed by the Tribunal, even at this stage.
13. Learned counsel for the petitioner submits that his client is
willing to make the said deposit, but seeks eight weeks' time to do so.
In the interests of justice, the request deserves to be accepted.
14. Subject, therefore, to the petitioner effecting pre-deposit, in
terms of the order dated 24th May, 2017 (supra) passed by the
Tribunal, within a period of eight weeks from today, the impugned
order dated 10th September, 2018, passed by the Central Government
Industrial Tribunal shall stand set aside, and the petitioner would be
entitled to have his appeal (ATA 305-16-2017) heard on merits by the
Tribunal.
15. Let the petitioner appear before the Tribunal on 30 th January,
2019, to report compliance in terms of this order.
16. In view of the order passed today, the respondent shall stand
restrained from taking any coercive action against the petitioner for a
period of eight weeks from today. However, it is made clear that
failure, on the part of the petitioner, to make deposit, as above, within
the specific period of eight weeks, shall result in lifting of the said
restraint on coercive action. The petitioner is, therefore, directed to
communicate, to the respondent, evidence of making of pre-deposit, as
directed hereinabove, as soon as such deposit is made.
17. Needless to say, this Court has not returned any observations or
findings on the merits of the controversies which form subject matter
of the appeal of the petitioner before the Tribunal.
Dasti.
C. HARI SHANKAR, J
OCTOBER 23, 2018/kr
